Request that YOU Governor Rounds - Enforce the LAW:
1. Determine & Declare that HCR 1004 Violated the South Dakota Constitution;
and,
2. Order the South Dakota Legislature to Cease & Desist using Their Public
Office & Public Funds to Interfere with Amendment E

Dear Governor Rounds:

On YOUR official website it states:

“In every decision we make and in every policy we develop, we are committed to
protecting those who cannot protect themselves … We will protect our communities
from those who wish to do us harm. …”

We here bring to you, a case that tests those statements made by you.

Further, as you surely are aware, Title 1 – State Affairs and Government,
Chapter 1A – Unconstitutional Official Actions, provides:

“1-1A3. State Officers to Protect Constitutional Rights. Every state officer is
directed to utilize the full force and authority of his office to resist the
intrusion of such unlawful provisions and protect the constitutional rights of
the State of South Dakota and its individual citizens from the encroachments of
such provisions.”

Further, Title 1, Chapter 1-7 - Governor, provides:

“1-7-1. Powers and Duties of Governor. The Governor shall possess the powers and
perform the duties entailed him by the Constitution and by special provisions
throughout this code and among others, but without limiting other prescriptions
of his powers and duties, as follows:
* * * * *
(2) He shall see that the laws of the state are faithfully and impartially
executed;"

Governor Rounds, on December 22, 2005, Secretary of State Chris Nelson,
certified that we had turned in sufficient petition signatures on our proposed
Initiative to meet the required 33,500 signatures, to place the Initiative on
the ballot for November 2006. The Initiative was given the official title of
“Amendment E.” We in fact turned in 46,800 petition signatures. Thus, 46,800
citizens of South Dakota, at a minimum, clearly indicated that they at least
want a debate on this issue.

On March 3, 2006, we sent a respectful letter to Senate Leaders Gary Moore and
Eric Bogue and House Leaders Dale Hargens and Larry Rhoden (as well as to every
member of each chamber), requesting that they reconsider their unanimous
resolution - HCR 1004, and withdraw it, as it was in violation of both the South
Dakota and United States constitutions, and thus in violation of fundamental
voting rights of South Dakota citizens. (A copy of that letter is enclosed to
this letter for you.)

Our letter went on to provide the specifics regarding those multiple violations
of the law, thus such will not be repeated here (you can read the letter), other
than to state a few of the core legal authorities that forbid the Legislature’s
conduct here: 1) South Dakota Constitution, Article VI, Section 19 – Free and
Equal Elections, 2) Article VII, Section 1 – Right to Vote, and 3) South Dakota
Attorney General’s Official Opinion No. 88-28, Expenditure of Public Funds on
Election Issues.

We also asked the “leaders” to answer or reply to six (6) specific enumerated
questions regarding the doctrine of absolute judicial immunity.

Finally, we asked the “leaders” to publicly state whether they condoned or
condemned the hate speech statements made by Senator Schoenbeck against
Amendment E and its backers.

Neither the “leaders” nor any member, replied to that March 3, 2006 letter.

Therefore Governor Rounds, on March 17, 2006, we sent another respectful letter
to the “leaders” pointing out their failure to reply and informed
them that our polite request was now - a formal “legal demand”. (A copy of
that letter is enclosed to this letter for you.)

As further support for our position that HCR 1004 violated the law, our March
17, 2006 letter cited the cases of Hoogestraat v. Barnett, 199 S.D.
104, 583 N.W. 421 and Schulte v. Long, 2004 S.D. 1002, both of which involved
the Attorney General’s written explanation for South Dakota voters on a
constitutional initiative measure. Our letter quoted Chief Justice Gilbertson’s
(then associate justice) concurring opinion in Hoogestraat, where the Court
determined the attorney general (Mark Barnett) had exceeded his authority there,
stating:

“At stake here is the impartiality of the voting booth. We fully join in the
Court’s opinion. We write only to stress a few additional points germane to the
decision on this expedited case.

“While in a generic sense, the Attorney General is the lawyer for the citizens
of South Dakota in that he is a public official who is paid with taxpayers’
funds like all public officials his duties are defined by the South Dakota
constitution and our statutes. We do not read his general duties as set forth in
SDCL 1-11-1 or any code section (exclusive of the disputed 12-13-9) to authorize
the giving of a legal opinion on the face of the ballot. Thus we are presented
with the narrow question now before us as to whether the disputed language may
be authorized by SDCL 12-13-9. For the reasons set forth in the Court’s opinion,
we conclude it is not. This is not to say that the Legislature may not authorize
such action if it chooses to do so in the future, only that it has not done so
at the present time.

“… we are cited to decisions from other courts which have upheld limitations on
corporate farming in varying degrees. See Omaha Nat. bank v. Spire, 389 NW2d 269
(Neb 1986); MSM Farms v. Spire, 9237 F.2d 330 (8th Cir 1991); Asbury Hospital v.
Cass County, 326 US 207, 66 SCt 61, 90 Led 6 (1945). ‘It is up to the people of
the State of Nebraska, not the courts, to weigh the evidence and decide on the
wisdom and utility of the measures adopted through the initiative and referendum
process.’ MSM Farms, 927 F.2d at 333.

Therefore, we leave any questions as to the constitutionality of amendment E for
such time as it is properly brought before us to determine that issue.
* * *
“This is one of those rare cases when the Court must act to protect the
integrity of the ballot box. We can take no side in the debate between corporate
and family farm interests, but we must ensure that the debate remains outside
the voting booth.

“In this case, the Attorney General’s statement that Proposed Constitutional
Amendment E ‘could result in successful lawsuits against the State of South
Dakota, under the U.S. Constitution’ goes beyond the narrow authority granted by
SDCL 12-13-9 and clearly exceeds the purpose of a ballot explanation. It is not
a statement of how Proposed Constitutional Amendment E would change existing
law. Rather it is conjecture as to possible consequences of a change in existing
law. As such, it has no place in a ballot explanation appearing on the general
election ballot. It is purely a statement of opinion which is more appropriate
to the political campaign and education process leading up to the election.”

Governor, our March 17, 2006 letter to the “leaders” then went on to state:

“More appropriate to the political campaign? Gentlemen that’s exactly what your
HCR 1004 was and is – but the problem is that you are campaigning with your
public office and public funds. That is verboten. You violated the law. As
Justice (now Chief Justice) Gilbertson stated above, it is up to the People, not
the courts [nor the legislature] to weigh the evidence and decide on the wisdom
and utility of the measures adopted through the initiative and referendum
process.

“Again, it is clear that your actions in using your office and public funds on
your HCR 1004, like those of Attorney General Barnett here, have interfered in
the initiative election process. Beyond your telling in an official fashion and
manner, South Dakota voters to “vote against” and “reject” Amendment “E” in HCR
1004, there you also officially told the voters that Amendment “E” is
“unconstitutional” – quite analogous to A.G.
Barnett’s unauthorized conduct.”

Again, neither the “leaders”, nor any member, replied to that March 17, 2006
letter.

“At stake here is the impartiality of the voting booth. … ‘It is up to the
people …, not the courts, to weigh the evidence and decide on the wisdom and
utility of the measures adopted through the initiative and referendum process.’
… This is one of those rare cases when the Court must act to protect the
integrity of the ballot box. We can take no side in the debate …”

Clearly Governor Rounds, the “leaders” have ignored not only us and our letters,
but also the law – Article VI, Section 19, Article VII, Section 1, Hoogestratt
and Attorney General Official Opinion, 88-28 – and have illegally taken a side
in the debate. Further, this illicit conduct by the “leaders” has now inspired,
encouraged and emboldened other government actors to follow them in violating
the law regarding Amendment E.

For example, on April ___, 2006 the Roberts County Commission adopted a
resolution condemning Amendment E. That was followed by the Rapid City
Council adopting a similar resolution during the week of April 17, 2006 and then
the Pennington County Commission on April 25, 2006 adopting a resolution
opposing Amendment E.

Clearly Governor Rounds, the above conduct by these government actors has
interfered with an election on an initiative measure and violates Article VI,
Section 19, Article VII, Section 1, Hoogestraat and Attorney General Official
Opinion 88-28. Thus our reason for writing to you Governor Rounds.
We hereby formally request that you enforce the law, and that you:

1. investigate the actions by both the house and senate regarding HCR 1004
(and that of the other local government entities);
2. determine whether the actions by the house and senate (and other local
government entities) regarding HCR 1004 have violated the law (Article VI,
Section 19, Article VII, Section 1, Hoogestraat, Attorney General Official
Opinion and federal voting rights);
3. if you find that such conduct violates the law, publicly declare such;
4. notify the offending government actors of their illegal conduct; and,
5. order the offenders to cease and desist from engaging in such further
illegal conduct.

Governor Rounds, the importance of Amendment E, and just how large is the
problem of judicial unaccountability, is exemplified in the following recent
articles (copies attached).

Further evidence of how our government does not abide by and does not follow our
Constitution, can be found in the following recent books by Judge Andrew P.
Napolitano.

1. CONSTITUTIONAL CHAOS: What happens When the Government Breaks Its Own
Laws , (2004) Nelson Current; and,
2. The CONSTITUTION In EXILE: How the Federal Government has seized Power
by Rewriting the Supreme Law of the Land, (2006) Nelson Current.

Another issue we must bring to your attention Governor Rounds, is the attached
copy of the December 8, 2005 Board of Bar Commissioners meeting “Minutes”, which
in pertinent part state:

“A meeting of the Board of Commissioners was held … December 8, 2005.
Attending were President Bob Ritter, … Secretary-Treasurer Barnett. Chief
Justice Gilbertson also attended. [P] The purpose of the meeting was to
consider a draft campaign plan prepared by Tom Barnett to respond to the
J.A.I.L. initiative. President Ritter led a discussion of the campaign
plan. The Chief Justice commented briefly. … [P] Barnett informed the
Commissioners that the campaign would be very expensive, perhaps costing as much
as $1 million. …”

Such conduct might also be in conflict with the law, being an expenditure of
mandatory bar dues to fund a cause not germane to all members, but instead
funding activities of an ideological nature outside the purposes of state bar’s
public charter. Keller v. State Bar of California, 496 U.S. 1 (1990).

It also appears that Chief Justice Gilbert, contrary to his statements in
the Hoogestraat case, has also “taken sides”. Clearly his appearance
alone, at that meeting, suggests an appearance of impropriety and points to the
lock-step and “defend at all costs” unitary relationship between the bar and
bench. Clearly this unmasks the constant hallowed claim of judicial
“independence” and shows the true political and power nature of the judiciary,
all to the detriment of the interest of the People.

Governor Rounds, one would think that you would be especially sensitive to these
issues in light of the Argus Leader investigation and report on your use of a
state plane for your personal use. Recall where an Argus Leader editorial wrote
that taxpayer airplanes should only be used for government
(taxpayer) business and “They’re not our Governor’s personal toys”.

Further, Governor Rounds, one would think that you would also be sensitive on
voting rights issues, in light of the series of voting rights cases concerning
Charles Mix, Shannon and Todd counties. As reported in Indian County Today,
January 13, 2006, article, “Supreme Court Denies Voting Rights Case”, the U.S.
Supreme Court refused to hear South Dakota’s appeal of a three-judge federal
panel ruling, that South Dakota was in violation of the Voting Rights Act. The
article concluded:

“’The actions of the South Dakota Legislature to silence the voice of Native
American voters have been shameful. We are pleased that the Supreme Court put
this matter to rest, but we are saddened that state officials would rather file
costly appeals than obey the law to protect the rights of all South Dakota
citizens,’ said Jennifer Ring, executive director of the ACLU of the Dakotas.”

And more recently, “Court reinstates Voting rights Case Against city of Martin”,
May 6, 2006, Associated Press, SiouxCityJournal.com, reported:

“A federal appeals court on Friday reinstated a lawsuit that accuses the city of
creating city council districts that violate the voting rights of American
Indians. [P] The 2-1 ruling by a panel of the 8th Circuit Court of Appeals will
require a federal judge in Dakota to hold further hearings that could lead to
redrawing of city council districts.”

Governor Rounds, we believe that the doctrine of absolute judicial immunity is
just flat out wrong. Wrong for the following reasons:

1. it is an anachronistic relic;
2. it is inconsistent with basic principals of constitutional law;
3. it places government ahead of safeguarding the People’s rights;
4. it is not mentioned in the Constitution;
5. it is borrowed from England – “the King can do no wrong”;
6. it is contrary to the Constitution (Article VI) being the supreme law;
7. it is contrary to the central maxim that no one is above the law;
8. it places the judiciary above the law;
9. it ensures that some citizens injured by judges will have no remedy;
10. it renders the judicial role of upholding the Constitution illusory;
11. it undermines the very essence of civil liberty.

Amendment E directly challenges the doctrine of absolute judicial immunity.
46,800 South Dakota citizens want this issue debated and voted on in November.

Governor Rounds, we hope that you will do your duty, enforce the law and see to
it that the citizens of South Dakota get a free and equal election regarding
Amendment E, with no governmental power, civil of military, interfering to
prevent the free exercise of the right to debate this issue and to vote on it.

One final question Governor Rounds, have you used your office (or public
funds) to take a public position on Amendment E?